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2021 DIGILAW 221 (MP)

Hemant Raj Chaudhary v. Sujabad Sabha

2021-02-24

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. Heard on the question of admission. 2. The present second appeal is being filed challenging the judgment and decree dated 29.06.2019 passed by the 13th Additional District Judge, Gwalior in RCA No. 16/2016 confirming the judgment and decree dated 28.09.2015 passed by 8th Civil Judge Class I Gwalior in Civil Suit No. 162A/2015. 3. It is alleged that the plaintiff-respondent herein filed a civil suit for ejectment and recovery of rent with respect to the shop situated at Sujabadh Bhawan, Gwalior against the appellant/defendant on the allegation that the plaintiff is a registered society under the provisions of the Madhya Pradesh Societies Registrikaran Adhiniyam, 1973. The purpose of the society is for providing the education and other facility and welfare to the Punjabi community as mentioned in bylaws. The rent at the rate of Rs. 300/- per month excluding electricity charges were fixed between the parties and the appellants are regularly paying the same. It is alleged that the suit was filed showing the need of the suit accommodation for the purpose of parking and an another shop which is also in possession of the tenant for which a suit is pending. The need is shown to be for parking as some social functions that is marriage etc. are being solemnized in the premises and as the parking facility is not available there, therefore, the suit was filed for ejectment for the aforesaid purpose. The President and the Secretary being the elected members are entitled to file the suit for ejectment. The written statement has been filed denying all the plaint allegations. The need of plaintiff as projected infact is not a bonafide need and unnecessarily the plaintiff is trying to get the vacant possession of the property in question. The appellant is carrying on business for livelihood of his family and himself since years together. There are no arrears of rent but he has been paying the rent regularly to the landlord. It is submitted that the learned trial court has considered the aspect that the property is being required for parking purpose as certain social activities and large public interest are being carried out in the adjoining premises just to facilitate the parking for the public at large the society requires the space for parking. There is no dispute with respect to the tenancy of the appellant in the aforesaid premises. There is no dispute with respect to the tenancy of the appellant in the aforesaid premises. It is submitted that the Secretary was not competent person to file a civil suit, therefore, the suit itself was not maintainable. The learned trial Court after hearing the parties at length and considering the oral as well as documentary evidence on record has arrived at a conclusion that the plaintiff was successful in proving the case beyond his reasonable doubt and the issues which were framed answered in positive. It was held that the plaintiff is a public trust and Bharat Bhushan Verma and Mahesh Arora were granted the rights to initiate the civil proceedings for eviction of the property. As far as bonafide requirement for continuing his activities in public interest is concerned that was also found proved by the learned trial Court. No other premises were available for such purposes stands proved before the learned trial Court by adducing evidence. Thus, all the issues which have been framed were established before the trial Court by the plaintiff leading cogent evidence. Therefore, the learned trial Court vide its judgment and decree dated 28.09.2015 has allowed the civil suit and decree of eviction was granted in favour of the plaintiff. Challenge being made to the judgment and decree passed by the learned trial Court by way of filing an appeal which was registered as RCA No. 16/2016. The ground made for challenging the appeal is that the bonafide requirement shown by the plaintiff does not fall under Section 20 of the Accommodation Control Act as the Society registered is for a particular community at large and not for the public at large. The Society is being registered for a Punjabi Community as is reflected from Ex-P/13. He has read over the relevant bye-laws of the society which says that the activities are to be carried out with respect to the Punjabi community. The aforesaid aspect cannot be considered as the social activities being carried out for public at large. The suit filed for eviction showing the bonafide requirement for carrying out the social activities at large is not made out in the fact and circumstances of the case as the documents of the plaintiff itself shows that they are for a particular community. The suit filed for eviction showing the bonafide requirement for carrying out the social activities at large is not made out in the fact and circumstances of the case as the documents of the plaintiff itself shows that they are for a particular community. The bylaws of the society extracts that the trust has been created for the benefit of the particular community and their members. In such circumstances, the consideration made by the courts below with respect and giving a finding that the activities are being carried out for public at large is not made out in the facts and circumstances of the case. The learned appellate court has also not considered the aforesaid aspect and by the judgment and decree dated 29.06.2019 has dismissed the appeal and has affirmed the judgment and decree passed by the learned trial Court. Being aggrieved by the judgment & decree passed by both the courts below the second appeal has been preferred. It is argued that Section 20 of the Accommodation Control Act has not been considered neither by the trial Court nor by the appellate Court. Therefore, the substantial question of law which arises for consideration in the second appeal is that whether both the learned courts below are correct and proper in decreeing the suit for ejectment under Section 20 of the Accommodation Control Act where the applicability of Section 20 of the Act is not there and whether the need as projected for parking facility, a small shop which has measurement of 500 sq. ft. can be treated as a suitable place for public purpose providing parking facility to public at large. It is argued that the defendant/appellant is in possession of the two shops ad measuring 500 sq ft. of the total area being 500 sq. ft. which cannot be said to be sufficient and suitable space for parking purpose for an event like marriage which is said to be a social event for the public at large and the Section 20 of the Accommodation of Control Act does not provide for filing of a suit by the landlord with respect to any accommodation by company or any other body or local body or public institution as the petitioner is a public society registered under the Cooperative Societies Act but are carrying out their activities only for a particular community that is Punjabi community. The document Ex-P/13 demonstrate the bylaws of the Society registered for public purpose but from the perusal of the entire bylaws it is only reflected that it is with respect to a particular community. Therefore, the provisions of Section 20 of Accommodation Control Act are not attracted in the facts and circumstances of the case. The learned courts below has committed a grave error in not appreciating the aforesaid aspect. Therefore, the second appeal is being filed. 4. Heard the learned counsel for the appellant and perused the record. 5. From the perusal of the record it is seen that the civil suit was filed taking aid of Section 20 of the Accommodation Control Act by the Society Shri Sujabadh Sabha (Registered) Gwalior Madhya Pradesh registered Society under the Society Registration Act having its office at Sujabadh Bhawan, Nai Sadak Lashkar Gwalior. The proceedings of eviction are being initiated by the President and the Secretary of the Society pointing out the fact that as they are carrying out the social activities such as marriage ceremonies etc. they require some space for parking facility. The evidence was led before the learned trial Court by the plaintiff as well as the defendant. They have produced their bylaws as Ex-P/13. The learned trial Court has framed six issues and all the issues framed by the trial Court was proved by the plaintiff. In such circumstances, the decree of eviction was passed by the learned trial Court vide judgment and decree dated 28.09.2015 in civil suit No. 22A/13. On challenge being made to the appellate authority the appellate court after perusal of the record and considering the provisions of Section 20 of the Accommodation Control Act has allowed the appeal. The appellate court has considered the grounds raised by the petitioner with respect to Section 20 of the Accommodation Control Act and after relying upon the judgments passed by the Supreme Court has dismissed the appeal. The only ground which has been raised by the petitioner in the second appeal is that the Section 20 of the Accommodation Control Act is for a public purpose and not for a particular community at large. In such circumstances, the provisions of Section 20 are not attracted. The only ground which has been raised by the petitioner in the second appeal is that the Section 20 of the Accommodation Control Act is for a public purpose and not for a particular community at large. In such circumstances, the provisions of Section 20 are not attracted. It is seen from the record that there are specific pleading with respect to the fact that certain social activities are being carried out by the society in the adjoining premises such as the marriages are being solemnized for public at large. There is a huge problem for parking, therefore, the need for the shops were required for parking of the vehicles in the aforesaid premises. The explanation to Section 20 clearly shows that for the purpose of this Section "Public institution" includes any educational institution, library, hospital and charitable dispensary etc. It is further shows that the area where social activities are being carried out for benefit of public at large can be considered for public purpose. The burden of proving that no such activities are being carried out was entirely upon the plaintiff. The theory of burden of proof was considered by the Hon'ble Supreme Court in the case of Kundan Lal Rallaram vs. Custodian Evacuee Property, AIR 1961 SC 1316 , wherein with respect to the burden of proof it is held that :- "the phrase burden of proof has two meanings One, the burden of proof as a matter of law and pleading and the other the burden of establishing a case, the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily to be direct evidence, i.e., oral or documentary evidence or admissions made by the opposite party. It may comprise circumstantial evidence or presumptions of law or fact." 6. The Hon'ble Supreme Court in the case of Anil Rishi vs. Gurbaksh Singh, reported in AIR 2006 SC 1971 with respect to burden of proof has held as under:- "Initial burden of proof would be on plaintiff in view of Section 101. The elementary rule Section 101 is inflexible. The Hon'ble Supreme Court in the case of Anil Rishi vs. Gurbaksh Singh, reported in AIR 2006 SC 1971 with respect to burden of proof has held as under:- "Initial burden of proof would be on plaintiff in view of Section 101. The elementary rule Section 101 is inflexible. In terms of section 102 the initial onus is always on plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same." 7. There are concurrent findings of both the Courts below with respect to the pleadings and evidence led by the parties and both the Courts have concurrently held that the plaintiff is entitled for decree of eviction. 8. This Court in the case of Sultan Singh & Ors. vs. Hakim Singh & Anr., reported in 2020(3) MPLJ 374 has held as under:- "12. So far as the question of long possession of the plaintiff is concerned, the plaintiffs had claimed their possession on the basis of their self claimed ownership. It is well established principle of law that the concurrent findings of facts should not be interfered by this Court even if the same are erroneous unless and until the said findings are pointed out to be perverse. No perversity could be pointed out by the counsel for the appellants, although he tried to convince this Court by pointing out from the evidence that the findings are erroneous. In the considered opinion of this Court, no substantial question of law arises in the present appeal. Accordingly, the judgment and decree dated 17-12-2018 passed by Second Additional District Judge, Morena in Civil Appeal No. 14-A/2015 and the judgment and decree dated 17-2-2014 passed by Fifth Civil Judge, Class-II Morena in Civil Suit No. 44-A/2012 are hereby affirmed." 9. This Court in the case of Municipal Council, Dhar vs. Abid Hussain, reported in 2020(3) MPLJ 391 has held as under :- "16. It is settled law that the scope of interference by the High Court under Section 100 of the CPC in Second Appeal is very limited. Both the Courts below have concurrently recorded the findings in favour of the plaintiffs and decreed the suit in their favour. It is settled law that the scope of interference by the High Court under Section 100 of the CPC in Second Appeal is very limited. Both the Courts below have concurrently recorded the findings in favour of the plaintiffs and decreed the suit in their favour. Hon'ble the Apex Court in the catena of judgments has decided the scope of interference by the High Court in Second Appeal with the concurrent findings recorded by both the Courts below." 10. This Court also in the case of Prem Narain vs. State of M.P. and Anr. reported in 2019 (2) MPLJ 518 has held as under:- "13. Thus, it is clear that the question of readiness and willingness is a question of fact and until and unless the findings recorded by the Courts below are pointed out to be perverse and de hors the record, this Court is of the considered opinion that under Section 100 of CPC the findings of fact, may be erroneous but cannot be interfered with. 11. In the present case also there are concurrent findings of both the courts below. The appellant cannot make out a case pointing out the fact that any substantial question of law is arising out of in the case. In such circumstances and looking to the judgments passed by the Hon'ble Supreme Court, no substantial question of law is made out in the present case. Accordingly, the appeal sans merits and is hereby rejected. 12. At this stage, counsel for the appellant has raised an alternative plea that in case the appeal is rejected then some breathing time be granted to the appellant to vacate the premises. 13. From the record it is seen that the judgment and decree was passed in the year 2019 and after passing of the judgment and decree they are all in possession of the property in question. In such circumstances, further one year's time appears to be a reasonable period to be given to the appellant to vacate the premises and handover the vacant possession to the plaintiff. If the appellant files an undertaking before the trial Court within a period of 15 days from today to the effect that they will handover the vacant possession of the premises to the plaintiff, then the time period for handing over the vacant possession is extended for a period of one year. If the appellant files an undertaking before the trial Court within a period of 15 days from today to the effect that they will handover the vacant possession of the premises to the plaintiff, then the time period for handing over the vacant possession is extended for a period of one year. He is directed to vacate the premises and handover the peaceful & vacant possession of the property in question by 25th February, 2022. If such an undertaking is not filed then the appeal shall stand dismissed without any further observations and the plaintiff will be entitled to get the vacant possession of the property in terms of the judgment and decree passed by the trial Court. 14. With the aforesaid observations, second appeal is dismissed.